California’s New Employment Laws – 2018

As has become the norm in California, a slew of new employment laws will go into effect this year that will dramatically affect certain businesses throughout the state. It is advised that all California employers review the new laws below and implement the necessary changes, or speak with Navigato & Battin to find out how such laws may affect your operations in 2018 and beyond.

Minimum Wage Increase

Beginning on January 1, 2018, California employers with 25 employees or less are required to pay a minimum wage of $10.50/hour. For those employers with 26 employees or more, the minimum wage is set at $11.00 an hour. The minimum wage in the City of San Diego will not increase in 2018 and instead will remain at $11.50. If your business is located within the San Diego city limits, make sure you are complying with the increased minimum wage and not California’s lower standard, regardless of the number of employees your company employs.

AB 1008 – “Ban the Box”

Effective January 1, 2018, employers may no longer ask applicants for employment, either in writing or orally, about their conviction history until a conditional offer of employment is made. After an offer of employment is made conditioned on a background check, the employer may conduct a criminal history background check. If the background check reveals a criminal conviction, and the employer wants to deny the applicant the position at least in part because of the conviction, the employer must engage in an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that would justify denying the applicant the position. Such assessment is not required to be in writing, but the assessment should consider: the nature and gravity of the conduct, the time that has passed since the criminal activity, and the nature of the job sought. Thereafter, the employer must notify the applicant of its decision in writing which must include the conviction(s) which formed the basis for disqualification, a copy of the conviction history report, and an explanation of the applicant’s right to respond to the preliminary decision. The applicant then has at least five business days to respond to the preliminary decision. The employer must consider the information provided by the applicant before making a final decision. If a final decision to deny employment is made, the employer must again notify the applicant in writing and explain any existing procedure the employee has to challenge the decision or request reconsideration. The notice must also disclose that the employee has the right to file a complaint with the Department of Fair Employment and Housing.

Additionally, employers may not consider or disseminate information about the following at any time: (a) an arrest which did not result in a conviction, excepting in extremely limited circumstances; (b) referral to or participation in a pretrial or post-trial diversion program; or (c) convictions that were expunged or sealed.

For many years, California has required those employers with 50 or more employees to provide two hours of sexual harassment prevention training to all supervisory employees within six months of their assumption of a supervisory position and once every two years thereafter. You can read more on the training here.

Now, SB 396 has expanded the training and requires employers to include training regarding gender identity, gender expression, and sexual orientation. Additionally, the Department of Fair Employment and Housing is developing a poster regarding transgender rights, which must be posted in a prominent and accessible location.

This new requirement also ties into other legislation that simplifies the process for a person to change their legal gender to female, male, or nonbinary. California is the first state to recognize nonbinary as a gender.

AB 168 – Restriction on Salary History

Effective January 1, 2018, employers are not permitted to directly or indirectly seek or inquire into a job applicant’s salary history, compensation, or benefits. To learn more about this law, read our November article, found here.

SB 63 – “Baby Bonding” Protections

While employers with 50 or more employees already have an obligation to provide baby bonding leave pursuant to the California Family Rights Act, a new law which took effect on January 1, 2018, extends the baby bonding leave to smaller employers. Under the new law, employers who employ 20 to 49 employees, must extend 12 weeks of unpaid parental leave to bond with a new child to any employee who has worked at least 1,250 hours of service with an employer during the previous 12-month period. The parental leave must be taken within one year of the child’s birth, adoption, or foster care placement. The employee may use accrued vacation, paid sick leave or other accrued time off during this period. During such leave, the employer is required to maintain the employee’s health insurance under the group health plan at the same level that it would have provided the employee had he/she not taken the leave. If the employee fails to return to work, the employer may recover the costs of maintaining the health plan if the failure to return is due to a reason other than a serious health condition or other circumstances beyond the employee’s control.

AB 450 – Immigrant Worker Protection Act

In an effort to protect workers from immigration enforcement workplace raids, California has put in place a new law requiring each employer to do (or refrain from doing) the following (subject to certain exceptions):

Require a judicial warrant before consenting to an immigration enforcement agent entering nonpublic areas of a place of labor;

Require a subpoena or court order before an immigration enforcement agent can access, review, or obtain employee records;

Provide employees with a notice of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection. The notice must state: (a) the name of the immigration agency; (b) the date the employer received the notice of inspection; (c) the nature of the inspection to the extent known; (d) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification.

Provide affected employees (employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I-9 forms, upon reasonable request;

Provide affected employees a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and affected employee(s) arising from the action, within 72 hours of receipt of the results notice. This notice must be delivered by hand to only the affected employee(s), and if it cannot be delivered by hand it must be delivered by mail or email. The notice must include: (a) a description of all deficiencies or other items identified in the written immigration inspect results notice; (b) the time period for correcting any potential deficiencies identified by the immigration agency; (c) the time and date of any meeting with the employer to correct any identified deficiencies; and (d) notice that the employee has the right to representation during any meeting scheduled with the employer.

Employers who are found to have violated any of the above may be fined by the Labor Commissioner or Attorney General in an amount between $2,000 and $5,000 for the first violation and between $5,000 and $10,000 for each subsequent violation.

Finally, the new law also prohibits employers from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law. Violation can result in penalties of up to $10,000 for each violation.

New Domestic Violence, Sexual Assault, Stalking Notice

As a reminder, on July 1, 2017, California employers must provide all new hires and any current employee who so requests a written notice of rights of victims of domestic violence, sexual assault, and stalking.

In addition, there are several other new California laws that affect employers in certain industries. We have only outlined a portion of the new laws which may impact the way you do business. If you have questions regarding any of the new employment laws or need assistance in updating your employee handbooks or polices, the attorneys at Navigato & Battin are here to offer assistance.